Norman v. State (FL Open Carry)

Challenge to Florida's ban on open carry. Bad News, Florida Supreme Court decided the OC ban is constitutional. Good news, the reasoning employed by the court is in lockstep with Moore. That there is a right to self-defense outside the home, but the state may regulate the manner of carry. And not restrict carriage. More of a placeholder until I get the actual opinion rather than excerpts.
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I should have added that it's good only in that a state court has reasoned that the 2A protects the right, not the manner. Diverges from Peruta right there. It's all relative since the "good news" is not so good for OC proponents. But it's better than what's been coming out of the Obama packed federal circuit courts of appeal.
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Challenge to Florida's ban on open carry. Bad News, Florida Supreme Court decided the OC ban is constitutional. Good news, the reasoning employed by the court is in lockstep with Moore. That there is a right to self-defense outside the home, but the state may regulate the manner of carry. And not restrict carriage. More of a placeholder until I get the actual opinion rather than excerpts. Sent from my VS987 using Tapatalk

Florida does restrict concealed carry. They License it! A license is a grant of authority to engage in an activity that is otherwise illegal.

Challenge to Florida's ban on open carry. Bad News, Florida Supreme Court decided the OC ban is constitutional. Good news, the reasoning employed by the court is in lockstep with Moore. That there is a right to self-defense outside the home, but the state may regulate the manner of carry. And not restrict carriage. More of a placeholder until I get the actual opinion rather than excerpts. Sent from my VS987 using Tapatalk

Again, I have to ask. If the Moore decision said that states can choose between concealed or Open Carry then why haven't any of the concealed carry cert petitions claimed that the Moore decision created a SCOTUS Rule 10 split? The Moore decision said that Illinois could require Open Carry as per the Heller decision. It did not say that Illinois could ban Open Carry as per the Heller decision. It did not say that Illinois could chose between concealed and Open Carry as per the Heller decision.

The only thing positive about the Norman decision is that the Florida Supreme Court has created a Rule 10 split with every Federal court of appeals and every state court of last resort both pre and post Heller.

Yes. The Norman decision creates a split with every Federal circuit and with every state court of last resort both pre and post Heller. Kennedy and Roberts can no longer hide behind SCOTUS Rule 10 as an excuse to deny cert.

The distinction between regulation and restriction is that regulation deals with the "who (can do this)" where restriction deals with "no, you cannot do this." Moore didn't explicitly state that states must choose the manner. It stated that Illinois must enact a licensing regime that is consistent with the Second Amendment. Unless and until the current scheme is ruled unconstitutional, it remains constitutional. That beautiful presumption of constitutionality. Peruta stated the 2A does not protect concealed carry, didn't even bother to address the Constitutional issue of carry outside the home.
Now they have state Supreme Courts splitting from federal courts and that's a big problem for SCOTUS, as Mr. Nichols pointed out.
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That there is a right to self-defense outside the home, but the state may regulate the manner of carry. And not restrict carriage.

Do you have the opinion?

That line is certainly interesting and I am wondering if it can be used to diminish the public transport restrictions? I know there was a case in Madison, WI that found restriction of weapons on public transport is legal. So it is a complex legal issue.

Just found this, been monkeying around trying to get it to upload here but Tapatalk won't let me upload anything other than pictures so I couldn't upload direct. Here's a link to the PDF file of the opinion and order.

Speed reading it, picking out some noteworthy passages. I'm not going in order here, some of these quotes are from later in the opinion, such as the following (manner regulated):
"Significantly unlike other rights contained in Florida’s declaration of rights, however, the plain language of article I, section 8, of the Florida Constitution explicitly authorizes the Legislature to regulate the manner of exercising the right to keep and bear arms for self-defense."
They even cited Jackson in their analysis determining the proper level of scrutiny. Concluded that, since Florida is very permissive shall-issue and there are multiple exemptions to the open carry restriction, that the law is constitutional.
Same conclusion as the original Peruta panel reached after a historical analysis, one or the other, can't destroy the right. This is a little different but same conclusion.
"As to Norman’s other constitutional challenge to section 790.053, the Fourth District concluded that 'open carry is not the only practical avenue by which [Norman] may lawfully carry a gun in public for self-defense. Through its "shall-issue" permitting scheme, Florida has provided a viable alternative outlet to open firearms carry which gives practical effect to its citizens’ exercise of their Second Amendment rights.' Id. at 226."
It's clear the Florida Supreme Court believes that the 2A extends to bearing firearms for self-defense....
"Not only is the Federal right to bear arms applicable to the states under McDonald by selective incorporation through the Due Process Clause of the Fourteenth Amendment, but the Florida Constitution includes a separate constitutional right to bear arms in article I, section 8."
Rational basis may not be used...
"Although Heller provided little guidance to courts reviewing constitutional challenges to gun regulations under the Second Amendment, it foreclosed subjecting the kind of regulation at issue here to rational basis review."
This is a sound decision. Very, very sound. And it creates a colossal problem for Roberts. They cannot keep ignoring these cases
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<snip> This is a sound decision. Very, very sound. And it creates a colossal problem for Roberts. They cannot keep ignoring these cases Sent from my VS987 using Tapatalk

The difference between a sound decision and a decision you like is as wide as the Grand Canyon. The Norman decision is no less a slap in the face to SCOTUS than was the Caetano decision. You are correct in that the Norman decision creates a colossal problem for Roberts but you did not go far enough, the Norman decision adds to the colossal problem faced by SCOTUS. The US Supreme Court justices have issued several decisions and yet the inferior courts (and now three state high courts) are in revolt and with the exception of the Caetano per curiam, the Court has done nothing to put them down.

So goes Florida. So goes Illinois. I know. Different districts, but this is a very clear decision in favor of those that want to restrict open carry. It will be used and embellished every time the subject is brought up.

Correct. One court says this, another says that, and another says this, and so on, yet none have managed to follow Heller and Caetano. Only concocted their own methodology. The only power SCOTUS has to remedy this....cluster, is to deal with it. They wouldn't be expanding Heller. They would be clarifying.
Unfortunately, (I suspect that) the Court won't grant cert because Kennedy is wishy-washy....or Roberts drank the Kool-aid, who knows, and Alito and Thomas do not want an undesirable outcome as it may adversely affect Heller and McDonald. Hopefully Gorsuch is seated on the bench before Peruta is conferenced. But that doesn't solve the problem of Kennedy being persuaded by Kagan. That's why Scalia used to hang out with her. To keep her attention off of Kennedy but since Scalia has passed, she's really been working him over.
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Correct. One court says this, another says that, and another says this, and so on, yet none have managed to follow Heller and Caetano. Only concocted their own methodology. The only power SCOTUS has to remedy this....cluster, is to deal with it. They wouldn't be expanding Heller. They would be clarifying. Unfortunately, (I suspect that) the Court won't grant cert because Kennedy is wishy-washy....or Roberts drank the Kool-aid, who knows, and Alito and Thomas do not want an undesirable outcome as it may adversely affect Heller and McDonald. Hopefully Gorsuch is seated on the bench before Peruta is conferenced. But that doesn't solve the problem of Kennedy being persuaded by Kagan. That's why Scalia used to hang out with her. To keep her attention off of Kennedy but since Scalia has passed, she's really been working him over. Sent from my VS987 using Tapatalk

There are many valid reasons why the cert petition will be denied. Perhaps foremost among them is procedural. SCOTUS does not consider cases where the argument is made for the first time on appeal. Justice Thomas reiterated that fact recently in his concurrence to the denial of cert in a petition challenging civil asset forfeiture as a violation of due process. Justice Scalia said that it should be challenged and indicated that due process challenges are the way to go. Unfortunately the petitioner in the case did not argue a due process challenge in the court of appeals. It was made for the first time in the cert petition.

It is impossible to read the Peruta briefs or understand the oral arguments and come to the conclusion that the Peruta plaintiffs sought to carry a handgun in public in "some manner." Instead, the NRA lawyers argued that Open Carry can, should and must be banned in favor of concealed carry which is very different from the question the Peruta cert petition presents.

Ironically, had the NRA lawyers stuck with their original argument on appeal, they would now have a SCOTUS Rule 10 split because of the Norman v. State decision.

It is impossible to read the Peruta briefs or understand the oral arguments and come to the conclusion that the Peruta plaintiffs sought to carry a handgun in public in "some manner." Instead, the NRA lawyers argued that Open Carry can, should and must be banned in favor of concealed carry which is very different from the question the Peruta cert petition presents..

Clearly you know this issue inside and out, but there's no way that's true. I saw your video "NRA says states can ban open carry" and that video doesn't support your claim. Do you have some other quote or brief from the NRA? I can't believe they'd ever take a position different from the one in that video; I.e. that states may choose from either open or concealed carry, but must allow one or the other.

It is impossible to read the Peruta briefs or understand the oral arguments and come to the conclusion that the Peruta plaintiffs sought to carry a handgun in public in "some manner." Instead, the NRA lawyers argued that Open Carry can, should and must be banned in favor of concealed carry which is very different from the question the Peruta cert petition presents..

Clearly you know this issue inside and out, but there's no way that's true. I saw your video "NRA says states can ban open carry" and that video doesn't support your claim. Do you have some other quote or brief from the NRA? I can't believe they'd ever take a position different from the one in that video; I.e. that states may choose from either open or concealed carry, but must allow one or the other.

The NRA lawyer Paul Clement's statement from the brief video clip you referenced that "States can impose concealed carry" cannot be interpreted to mean anything other than states can ban Open Carry even if you have never read any of the briefs in this case, which you say that you have not.

I would suggest that you start by reading the Petition for a Full En Banc Court rehearing followed by the cert petition stage briefs as they are the most recent.

When you get to the Appellant Opening Brief (filed in May 2011), PC 12031 refers to the 1967 Black-Panther Loaded Open Carry ban which the NRA helped write. PC 626.9 is the California Gun-Free School Zone Act of 1995 which the NRA, in that opening brief, said would be "drastic" if it were overturned. Publicly, the NRA says its opposes gun-free school zones. In court, the NRA supports gun-free school zones. I think that speaks volumes in and of itself.

When you have done all of that, go back to the NRA petition for a Full Court en banc rehearing and turn to page 17 Section IV. I studied law ten years earlier than did the lawyer who wrote that brief ("Chuck" Michel) despite him being 10 years older than me and so the law I studied in 1978-1980 was apparently more focused on the Civil Rights Era given that Chuck Michel made the same legal arguments in his petition that were made in support of the Jim Crow laws and other forms or racial segregation.

Given the age and racial make-up of the active judges on the 9th circuit court of appeals, his Jim Crow argument does explain why not a single 9th circuit judge filed a dissent to not rehearing the appeal before a Full Court.

You will discover that the NRA's argument was that states can, should and must ban Open Carry in favor of concealed carry. Which frankly was more than clear in that short video clip you saw.

Regardless, the argument the NRA made in the court of appeals is different from the question it now presents to SCOTUS in its cert petition. The NRA cannot now claim that it merely sought to carry "in some manner" anymore than I could claim that I merely sought to carry "in some manner."

I have only sought to carry firearms openly and my position in the court on concealed carry has been the same as that found in the Heller decision.

You will discover that the NRA's argument was that states can, should and must ban Open Carry in favor of concealed carry. Which frankly was more than clear in that short video clip you saw.

Are you referring to the video clip where the exchange proceeds as follows?

Judge: "It would help me very much You say you can limit the right to carry in public but then you don't tell me what..."

Attorney: "Well, I mean look, as... as a starting point, I think that it's fairly clear that, you know, states should have the option about how they regulate carry. So if one state wants to prefer open carry, and another state wants to impose concealed carry, they certainly have that option."

If that's the clip, I'll confess I'm not personally picking up a "can, should, and must ban Open Carry in favor of concealed carry" vibe from this short clip.

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Edited by kwc, 11 March 2017 - 04:10 PM.

"Let us not become weary in doing good, for at the proper time we will reap a harvest if we do not give up." - Galations 6:9 (NIV)

"If you can't explain it to a six-year old, you don't understand it yourself." - Albert Einstein (paraphrased)

You will discover that the NRA's argument was that states can, should and must ban Open Carry in favor of concealed carry. Which frankly was more than clear in that short video clip you saw.

Are you referring to the video clip where the exchange proceeds as follows?

Judge: "It would help me very much You say you can limit the right to carry in public but then you don't tell me what..."

Attorney: "Well, I mean look, as... as a starting point, I think that it's fairly clear that, you know, states should have the option about how they regulate carry. So if one state wants to prefer open carry, and another state wants to impose concealed carry, they certainly have that option."

If that's the clip, I'll confess I'm not personally picking up a "can, should, and must ban Open Carry in favor of concealed carry" vibe from this short clip.

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Which is why one needs to read the briefs in a lawsuit before expressing an opinion. Oral arguments serve no purpose from a legal standpoint other than giving the lawyer for one side, or the other, the "opportunity" to inadvertently screw his client by making a concession (no matter how slight) that a hostile judge can run with.

However, from a public relations standpoint, that short clip in conjunction with the other clip on my page where the NRA claims it supports Open Carry, is damning to the NRA and a litmus test for those who have drank the NRA Kool-Aid.

The briefs also serve as a litmus test. The NRA Kool-Aid drinkers never read them.

But you did state that the NRA's position was "more than clear in that short video clip you saw," as though a stand-alone viewing would lead a viewer to conclude that the NRA believes Open Carry should and must be banned. The video says no such thing. In fact, it works against your conclusion, at least when viewed independently.
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That's all I wanted to contribute at this juncture.

"Let us not become weary in doing good, for at the proper time we will reap a harvest if we do not give up." - Galations 6:9 (NIV)

"If you can't explain it to a six-year old, you don't understand it yourself." - Albert Einstein (paraphrased)

But you did state that the NRA's position was "more than clear in that short video clip you saw," as though a stand-alone viewing would lead a viewer to conclude that the NRA believes Open Carry should and must be banned. The video says no such thing. In fact, it works against your conclusion, at least when viewed independently.
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That's all I wanted to contribute at this juncture.

Sounds to me like you are trying to avoid reading the briefs.

Believe what you want. I'm simply pointing out that the video doesn't say what you claimed. Nothing more, nothing less.

"Let us not become weary in doing good, for at the proper time we will reap a harvest if we do not give up." - Galations 6:9 (NIV)

"If you can't explain it to a six-year old, you don't understand it yourself." - Albert Einstein (paraphrased)

If you want people to read what you write you'll have to start leaving the attitude at home.

The posts with the ad hominems, and one quoting it, have been removed.

I'm sorry but it is tiresome to respond to these third grade arguments without "attitude" eventually leaking out. The fact remains that the question raised by the petitioners in their cert petition does not reflect either the question or the argument made by the NRA before the 9th circuit court of appeals. SCOTUS simply does not consider new claims or arguments raised for the first time in a cert petition.

The NRA's argument was that states can ban Open Carry in favor of concealed carry. That much was clear from the short video excerpt made by NRA lawyer Clement during oral arguments which I responded to. The NRA petition for a Full Court en banc rehearing clearly stated that California can, should and must ban Open Carry in favor of concealed carry.

It does not take a crystal ball to predict that the Peruta cert petition will be denied. The only question is if the denial will be postponed so that one or more of the justices will have time to file an agreement to the denial of cert as Justice Thomas recently did in Leonard v. Texas 580 U. S. ____ (2017).

:"This petition asks an important question: whether modern civil-forfeiture statutes can be squared with the Due Process Clause and our Nation’s history.

<snip>

Unfortunately, petitioner raises her due process arguments for the first time in this Court. As a result, the Texas Court of Appeals lacked the opportunity to address them in the first instance. I therefore concur in the denial of certiorari. Whether this Court’s treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail."

The question raised in the Peruta cert petition is:

"Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law."

As in Leonard, that was not the question presented to the 9th circuit court of appeals. That was not the argument the NRA made to the 9th circuit court of appeals. That was not the question decided by the 9th circuit court of appeals because it was never presented to them.

The NRA's argument was that states can ban Open Carry in favor of concealed carry. That much was clear from the short video excerpt made by NRA lawyer Clement during oral arguments which I responded to.

YES! That is precisely what the video conveys. "CAN." Mr. Clement did NOT suggest states SHOULD and MUST ban open carry.

Perhaps the appellants' en banc petition does include a "can, should, and must ban open carry" position. I've read it and can't find it. But you found a very clear "must ban open carry" statement in a 1-minute long video, so I won't doubt you found it somewhere in the 100+ pages of the en banc petition.

To me, the en banc petition appears consistent with the video--that a simultaneous ban on both forms of carry is unconstitutional.

You will discover that the NRA's argument was that states can, should and must ban Open Carry in favor of concealed carry. Which frankly was more than clear in that short video clip you saw.

Edited by kwc, 12 March 2017 - 10:31 AM.

"Let us not become weary in doing good, for at the proper time we will reap a harvest if we do not give up." - Galations 6:9 (NIV)

"If you can't explain it to a six-year old, you don't understand it yourself." - Albert Einstein (paraphrased)

It is impossible to read the Peruta briefs or understand the oral arguments and come to the conclusion that the Peruta plaintiffs sought to carry a handgun in public in "some manner." Instead, the NRA lawyers argued that Open Carry can, should and must be banned in favor of concealed carry which is very different from the question the Peruta cert petition presents.

Thanks for the links to the briefs in post #18. But they don't support your position that Peruta changed their arguments or that they argued Open Carry should be banned. To wit:

From Peruta's Sep 2011 Reply Brief (p. 9):

Notably, the issue here is not whether there is a “constitutional right to bear a loaded, concealed weapon” in public, as County and their amici repeatedly claim is the issue. AB at 10. Plaintiff-Appellants (“Plaintiffs”) assert no such right. Rather, they assert the right to bear loaded firearms for self-defense in whatever manner the state Legislature constitutionally directs. In California, that is by licensed, concealed carry.

From Peruta's Jun 2016 Petition for Full Court En Banc Hearing:

THIS CASE IS NOT, AND HAS NEVER BEEN, ABOUT WHETHER THE CONSTITUTION PROTECTS A RIGHT TO CONCEALED CARRY. ... Appellants [Peruto] contend that the Second Amendment requires that ordinary citizens be provided with some lawful means of carrying outside the home. But their claim has never been that the Second Amendment demands one means of carrying versus another; to the contrary, Appellants have explained on at least three dozen occasions that their claim is that prohibiting both open and concealed carry violates the Second Amendment.

...

In reality, this case is not, and has never been, about whether the Constitution protects a right to concealed carry. It is about whether the Constitution protects a right to carry at all. By refusing to answer that question, the en banc majority effectively refused to resolve the constitutional claims that Appellants have pressed—namely, whether depriving them of any outlet for carrying a handgun for self-defense violates the Second Amendment.

This seems sufficient to render your two claims (which I quoted above in this post) debunked.

The 9th Circuit simply mischaracterized Peruto's arguments and ignored the issue of whether or not the 2nd Am protects our right to bear in public in some fashion. The good news is that they clearly avoided the question becaues they knew they'd lose. So that's encouraging.

It is impossible to read the Peruta briefs or understand the oral arguments and come to the conclusion that the Peruta plaintiffs sought to carry a handgun in public in "some manner." Instead, the NRA lawyers argued that Open Carry can, should and must be banned in favor of concealed carry which is very different from the question the Peruta cert petition presents.

<snip>

This seems sufficient to render your two claims (which I quoted above in this post) debunked.

The 9th Circuit simply mischaracterized Peruto's arguments and ignored the issue of whether or not the 2nd Am protects our right to bear in public in some fashion. The good news is that they clearly avoided the question becaues they knew they'd lose. So that's encouraging.

So, moderator, tell me how you would respond to these follow-up posts?

It is impossible to read the Peruta briefs or understand the oral arguments and come to the conclusion that the Peruta plaintiffs sought to carry a handgun in public in "some manner." Instead, the NRA lawyers argued that Open Carry can, should and must be banned in favor of concealed carry which is very different from the question the Peruta cert petition presents.

<snip>

This seems sufficient to render your two claims (which I quoted above in this post) debunked.

The 9th Circuit simply mischaracterized Peruto's arguments and ignored the issue of whether or not the 2nd Am protects our right to bear in public in some fashion. The good news is that they clearly avoided the question becaues they knew they'd lose. So that's encouraging.

So, moderator, tell me how you would respond to these follow-up posts?

What do you need from a moderator? He quoted parts of the briefs that he understands to support his position that you are incorrect in your statement regarding the NRA and Open Carry. A proper response would be to quote the parts of the briefs that support your statements, if you choose to continue the debate.

So, moderator, tell me how you would respond to these follow-up posts?

What do you need from a moderator? He quoted parts of the briefs that he understands to support his position that you are incorrect in your statement regarding the NRA and Open Carry. A proper response would be to quote the parts of the briefs that support your statements, if you choose to continue the debate.

I have already proved my claim and yet he persists. The moderator told me I should not use an attitude in my posts and so I ask again, moderator, how would you respond to his subsequent posts?

Mr. Nichols, as much as I support your goal, I feel I'd be speaking for the majority by stating that your interpretation of this and other decisions is a stretch. By this, I mean your readings of many decisions appear far more cut and dry than the courts have presented, and presumably intended, them.